An accused can seek anticipatory bail under Section 438 of the CrPC even while in custody for a different offence, as the right to apply for anticipatory bail is not extinguished by prior custody.

J U D G M E N T

J.B. PARDIWALA, J. :-

For the convenience of exposition, this judgment is divided into the following parts:

A. SUBMISSIONS ON BEHALF OF THE APPELLANT ........................... 4 B. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1 (ORIGINAL ACCUSED) ............................................................................. 7 C. VIEWS OF DIFFERENT HIGH COURTS ON THE ISSUE IN QUESTION ................................................................................................. 10 D. ANALYSIS .................................................................................................. 25 i. Evolution of the concept of anticipatory bail ....................................... 25 ii. Whether a person, while in custody for a particular offence, can have a “reason to believe” that he may be arrested in relation to some other non-bailable offence? .................................................................... 44 iii. Illustrative Examples .............................................................................. 63 E. CONCLUSION ........................................................................................... 65

1. A short question of general public importance on which there is great divergence of judicial opinion that falls for the consideration of this Court is as under:

“Whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case?”

2. This appeal arises from the judgment and order dated 31.10.2023 passed by the High Court of Judicature at Bombay in Anticipatory Bail Application No. 2801 of 2023 by which the High Court overruled the objection raised by the appellant herein (original complainant) as regards the maintainability of the anticipatory bail application filed by respondent no. 1 (original accused) in connection with CR No. 806 of 2019 registered with Pimpri Police Station for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471 respectively read with Section 34 of the Indian Penal Code (for short, “IPC”) and thereby took the view that although respondent no.1 herein may already be in custody in connection with ECIR No. 10 of 2021, yet he would be entitled to pray for anticipatory bail in connection with a different case.

3. It appears from the materials on record that respondent no. 1 herein came to be arrested in connection with ECIR No. 10 of 2021.While in custody, he apprehended arrest in connection with CR No. 806 of 2019 registered against him at the instance of the appellant herein. In such circumstances, he prayed for anticipatory bail before the High Court. The appellant herein intervened in the proceedings of said anticipatory bail application and raised an objection that as respondent no. 1 herein is already in custody in connection with ECIR No. 10 of 2021, he cannot pray for anticipatory bail in connection with CR No. 806 of 2019. The objection raised by the appellant herein in his capacity as the complainant came to be overruled and the High Court proceeded to hold that although respondent no. 1 herein may be in custody in one case, yet the same would not preclude him from seeking pre-arrest bail in connection with a different case. Since the objection was overruled, the appellant is now before this Court.

A. SUBMISSIONS ON BEHALF OF THE APPELLANT

4. Mr. Sidharth Luthra, the learned Senior counsel appearing for the appellant canvassed the following submissions:

i. The High Court committed a serious error in taking the view that although a person might be in custody after his arrest in one case, yet such a person can apply for the grant of pre-arrest bail under Section 438 of the CrPC in connection with a different case.

ii. The essential part of arrest is placing the corpus (body of the person)

in custody of the police authorities. The natural corollary,